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Suppose there is a patent with claim A that is filed five years ago. It might not be perceived as "obvious" five years ago but it is very common nowadays.

Suppose John wants to file a patent application for his idea that is built on top of claim A.

  1. Would his patent even get granted?
  2. Even if it gets granted, if he practised his invention, would he be infringing claim A?

Assuming this is in the US.

To give an example, lets say back in the days when there is only black and white TV, John invented a color TV and it was so innovative at that time the claim "show color on TV" John wrote got granted. A few years later showing color on TV becomes so obvious that it becomes textbook material. Bill comes in with an invention that "shows color on digital TV", Sam comes in with an invention that "shows higher resolution color on TV".

  1. Would Bill's and Sam's patents get granted?
  2. If Bill and Sam practised their inventions, could John sue them for patent infringement?
  • You can never get sued (for patent infringement, at least) simply for receiving a patent which builds on another. Indeed, that is ostensibly the point of the patent system: to encourage inventors to build on what has gone before. Because of this, I'm a little unsure of what the "suing" in your question would relate to. Perhaps exploiting the patented invention? – Maca Sep 20 '16 at 23:14
  • @Maca My understanding is if John's invention is built on top of claim A and he is making money of it yet he didn't license the original patent with claim A he could potentially lose in court if the original author decides to sue him. Normally I would think this is the case but what about when claim A is absurdly broad? – user3667089 Sep 20 '16 at 23:31
  • I have proposed an edit to your question, to highlight what I think you're asking (which is actually quite a good question to highlight the nature of patent rights). But if I've got it wrong, please do roll it back. – Maca Sep 21 '16 at 0:02
  • @Maca Your edit actually makes it looks better, thanks! Hopefully some will be able to answer this. – user3667089 Sep 21 '16 at 0:47
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  1. They would get granted as they are innovative.
  2. If they produced their TVs they would infringe the original patent.

In this case, this would probably classify as a "standard essential patent", making licences by the fair reasonable and non discriminating (FRAND) criteria available.

The exact explanation of this would go to far, google it and then try to determine if the patent is eligible for this.

Patenting a (mayor) innovation on another patent is possible and does not infringe the original patent. If it is much better than the original (like HD for example) (if the owner of the original actually produces TVs) you might both need the other ones patent and have a good basis for licensing each others patents.

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